SC’s Stay of Mandal II: A Rejoinder

Mr.Vivek Reddy’s well thought-out response (carried in the comments section of my earlier post) requires a detailed critique. While I have posed certain specific questions to him, I am using this opportunity to further provoke him and other friends on the blog, so that there is more light on this controversial interim order.
1. Did the Court decide the case on merits?
Ans: My interest in the interim order is on how elaborate the Bench has been on the question of stay. It is pointless to “elaborately consider the contentions of the petitioners and the government” and then conclude in paragraph 18 that “the issues need deeper consideration in the background of their legal and social importance.”
Now let us consider how the Court considered the stay issue. Their only concern is this: “What may have been relevant in 1931 Census may have some relevance but cannot be the determinative factor.” The Central Government’s counter-affidavit shows how flawed this concern is. The 1931 Census was not the basis for identification of OBC castes. The GOI’s OBC lists include castes which are common to both the Mandal and the States’ lists. In other words, Mandal list alone is not sufficient. In effect, it is the states’ lists which have been accepted by the Central Govt. The states’ lists have undergone the tests of judicial scrutiny in many cases, and have not been struck down for want of uptodate data.
The court prima facie assumes that inclusion of castes in the OBC list has been mechanical, and done without adequate relevant data. This is a wrong assumption. The inclusion of castes has been going on for many years in various States, on a variety of criteria. The Mandal Commission followed its own criteria, (not on the basis of 1931 census) including representation from the claimant castes, field visits by the Members, and the States’ lists. Now, it is possible that some castes in the lists ceased to be socially and educationally backward, and there could have been mistakes and imperfections while including certain castes, as it could happen in a gigantic exercise like this. Even if there is a caste census, it could happen.
That is why the National Commission for Backward Classes Act, 1993 set up in pursuance of the Indra Sawhney judgment, provides a mechanism to rectify such aberrations. Anyone aggrieved with these lists, could approach the Commission stating the facts, and the nature of the complaint, with documentary evidence, if any for inclusion or exclusion. The Commission’s advice in this regard is binding on the Government. For this, one need not wait for 10 years. The Act also envisages once in a 10-years revision of the lists. This was complied with in 2003, when the Commission advised the Government after a revision, that there was no scope for excluding any classes from the list as the reservation was only introduced very recently after the implementation in services in 1993. In the case of educational institutions, it had not even started. So the question of revision did not arise. Strangely, the Court did not at all fault the petitioners for not using this grievance redressal mechanism under the NCBC Act. All these are to be found in the counter-argument. But for strange reasons, the Court did not address these issues at all in its judgment. Is it a case of selective consideration “on merits”?
I am unable to convince myself that it is a case of the Court hearing it on merits. Even if it had heard it on merits, I am unable to understand why the questions of balance of convenience and presumption of constitutionality are irrelevant. “Elaborate” order, ipso facto, cannot suggest that it was heard on merits. Did the Court seriously go into the merits or non-merits of stay? Instead, it raised extraneous issues like data collection and creamy layer, (on which it was not convinced itself, as it admitted there is need for detailed hearing), and on the basis of their superficial understanding (not even is there any prima facie finding), it proceeds to grant a partial stay.
2. Is there data to back up the OBC reservation?
Ans: Instead of asking the Government this question, the Court must have asked the petitioners, to show that specific inclusions of castes in the OBC list were without any data, and this was not seriously examined by the NCBC, when they complained to it. The petitioners are apparently lazy to carry out such an exercise themselves, and therefore, suggested a fresh survey. The Court cites ASG as saying in a different context that there is need for periodical identification of the backward citizens and for this purpose the need for survey of entire population on the basis of an acceptable mechanism. The Court does not want to admit that such an acceptable mechanism already exists in the form of the NCBC, which is entrusted with the task of revision, if necessary. The NCBC only found this revision exercise premature in 2003. If someone is aggrieved with this decision, they can challenge it, rebut it by proving that many castes in the OBC list had ceased to be socially and educationally backward. Again, the court has only come to the aid of the petitioners’ lazyness. On the contrary, imagine what could happen if the GOI follows the suggestion, carries out a survey, periodically identifies more backward citizens, only to show that the number of SEBC requiring reservation is much more than what was earlier believed to be. The Court is only opening a Pandora’s Box.
Here, I would like to correct Mr.Vivek Reddy. The court did not say that the Act is unconstitutional as of today. It is not even sure of this; that is why it has adjourned the case to August for a detailed hearing, clearly showing that its elaborate hearing for the interim stay is not at all sufficient. If the government comes up with fresh evidence, and the Court upholds the Act, will it then compensate the OBCs who lost one academic year, because of its faulty stay of S.6 of the Act?
3. The illogical data logic:
My point in raising the issue of governance coming to a standstill is to show how illogical the requirement of data collection is. Will anyone suggest data collection to show that the SCs and STs continue to be deprived or that the castes listed as SCs and STs still fulfil the criteria for their inclusion? After all, if things can change in the case of SCBCs, it could happen in the case of SCs and STs also. I understand SCs and STs suffer from centuries of historical injustice, and therefore, must be treated on a different plane. But the line of argument can be the same, without overlooking this essential difference. Why should we assume that the Govt. did not satisfy any objective social criterion before treating a caste as backward. I agree specific instances of abuse of power can always be exposed and there is a legitimate remedy and a process under the NCBC Act. But why should we throw the baby with the bathwater?
To put it differently, can Mr.Vivek Reddy as an example, demonstrate what sort of hard data could be convincing to show that the currently listed OBCs are SEBCs. The very inclusion of these castes in the lists carries with it a history of social and educational backwardness – if not a history of discrimination and deprivation as the SCs and STs – as documented by their representations to the Government, demands etc. I fail to understand how such data could be meaningful and convincing through data collection organized in terms of national surveys or censuses. Considering the backwardness and poverty level, it would not be surprising if the people fudge facts, or make spurious claims about their backwardness. The result would not only be confusing, but disastrous. Just one instance will explain. The reservations were first introduced in 1902 and 1921 respectively in princely states of Kolhapur and Mysore, in response to the local movements against existing caste based monopoly. Those princely states did not go about collecting data, but responded immediately to the demands, in order to prevent social unrest. Similarly, if the modern-day governments instinctively, and by way of impulse and formal and informal studies consider a caste as backward, such consideration can be largely respected, with due regard to a few exceptions, which can be tackled through the NCBC Act. It is naïve to believe that large-scale surveys, which the Court has in mind, would be able to help us have fool-proof OBC lists.
Mr.Reddy himself agrees that the question of overall OBC population is not directly relevant when it comes to educational institutions. Does he not agree that the Court is essentially mistaken when it cites different figures of OBC population, as given by different agencies to underline its data-quest? In my view, surveys conducted on a large scale are not the answer to determine whether a caste is SEBC. The answer has to be found in anthropology and sociology, not in statistics.
4. Why I feel the ‘stay’ is unjustfied?

Ans: I would like to draw attention to an important case decided in 2000 by the Supreme Court. It is Bhavesh D. Parish & Others v. Union of India and Another. In this case, the Court makes an important distinction between statutes having a bearing on economic policy and those which do not similarly impinge on economic policy. It cites the Supreme Court’s observations in R. K. Garg v. Union of India 1982 (1) SCR 947 at 969 to support this distinction. It says: “When considering an application for staying the operation of a piece of legislation, and that to pertaining to economic reform or change then the courts must bear in mind that unless the provision is manifestly unjust or glaringly unconstitutional, the courts must show judicial restraint in staying the applicability of the same. Merely because a statute comes up for
examination and some arguablepoint is raised, which persuades the courts to consider the controversy,the legislative will should not normally be put under suspension pending such consideration. It is now well-settled that there is always apresumption in favour of the constitutional validity of any legislation,unless the same is set-aside after final hearing and, therefore, the tendency to grant stay of legislation relating to economic reform, at the
interim stage, cannot be understood. The system of checks and balances has to be utilised in a balanced manner with the primary objective of accelerating economic growth rather than suspending its growth by doubting its constitutional efficacy at the threshold itself. While the courts should not abrogate its duty of granting interim injunctions where necessary, equally important is the need to ensure that the judicial discretion does not abrogate from the function of weighing the overwhelming public interest in favour of the continuing operation of a fiscal statute or a piece of economic reform legislation, till on a mature consideration at the final hearing, it is found to beunconstitutional. It is, therefore, necessary to sound a word of cautionagainst intervening at the interlocutory stage in matters of economicreforms and fiscal

In my view, this special treatment extended to economic legislations by the Supreme Court is not at all convincing. But I would tend to believe that the logic underlying this judgment applies with equal force to the Central Educational Institutions (Reservation in Admission) Act, 2007.
To sum up, did the SC conclude that S.6 of the C.E.I.(RA) Act, 2007 was manifestly unjust and glaringly unconstitutional? The court was not sure, that was why it has adjourned the case for a detailed hearing. Hence, the stay was apparently unjustified.
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